### THE ATTORSEX- GESERAL OF TEXAS

December 19, 1990

Honorable Bob Bullock Comptroller of Public Opinion No. JM-1264
Accounts Re: Whether the county attorney L.B.J. State Office Bldg. of Fayette County isentitled to Austin, Texas 78774 be compensated as

### adistrict attorney (RQ-2084)
Dear Mr. Bullock:
you 

### askwhether the county attorney of Fayette County isentitled tobe compensated 

### asadistrict attorney. Section 24.254 ofthe Government Code provides that the 155th Judicial District iscomposed ofAustin, Fayette, and wailer Counties. Section 43.160 of the Government Code states the t@voters ofAustin and Waller Counties elect a district attorney for the 155th Judicial District who represents the state inthat district court only in those 

### counties." Section 45.175 of the Government Code provides that in "Fayette County the county attorney shall perform the duties imposed on and have the powers conferred on district attorneys bygeneral law."
you direct our attention to section 46.001 of the Government Code that provides 

### countyattorneys performing the duties ofdistrict attorney 

### arewprosecutors'* under the Professional Prosecutors Act. See Gov't Code ch. 46. Section 46.003(a) provides that each wprosecutor isentitled to receive from the state compensation equal to 90percent of the compensation that isprovided for adistrict judge in the General Appropriations Act." Acts 1989, 71st Leg., ch. 1254, 52, at 5057 (effective September 1, 1989, amended). However, section 46.002 delineates prosecutozz subject to this chapter, which isapplicable only to prosecutors incounties named inthis section. Section 46.002(3) lists those county attorneys performing the duties of district attorney in designated counties as coming within the provisions of this chapter. The county attorney of Fayette County isnot listed insubsection (3).

p. 6755Honorable 

### BobBullock Page 2 (JM-1264)

Sections 46.001 and 46.002 were both enacted at the same session ofthe legislature aspart of Senate Bill 1228, Acts 1985, 69th Leg., ch. 

### 480, 51,at 1969 (effective September 1, 1985). Section 311.026(b) ofthe Government Code provides that if the conflict between a general provision and aspecial provision is irreconcilable, the special provision prevails unless the general provision is the later enactment and themanifest intent is that the general provision prevails. Inthe instant 

### case, subsection (3)of section 46.002 listing county attorneys performing the duties ofdistrict attorneys indesignated counties as coming within the act isthe special provision.
The legislative intent that the provisions of this act apply only to county attorneys 

### of counties listed in subsection (3)of section 46.002 is further evidenced by House Bill 600, Acts 1989, 71st Leg., ch. 811, 51, at 3676, amending subsection (3)of section 46.002 by adding county attorneys performing the duties ofdistrict attorneys in three additional counties. Neither the original nor the amended version of 46.002 lists 

### Fayette County. Furthermore, even though section 45.175 states that the county attorney of Fayette County has "the

### powers conferred on district attorneys by general law,l' chapter 

### 46 is the exclusive provision governing the pay ofcounty attorneys who perform the duties ofdistrict attorneys. We conclude that the district attorney of Fayette County does not come within the definition of llprosecutorO@in section 46.001 so astobe entitled to compensation under section 46.003.

The county attorney, of Fayette County is not entitled to 

### becompensated asa prosecutor under section 46.003 

### ofthe Government Code.

JIM MATTOX Attorney General ofTexas
MARYKRLLRR First Assistant Attorney General

p. 6756Honorable Bob Bullock Page 3 (JM-1264)

LOU

### MCCREARY Executive Assistant Attorney General
JUDGE ZOUIE STEAKLEY Special Assistant Attorney General
RENEA HICKS Special Assistant Attorney General
RICK GILPIN Chairman, Opinion Committee Prepared by Tom G. Davis Assistant Attorney General

Pm 6757